JUDGMENT
Kanhaiyaji, J.
1. This miscellaneous appeal is by the plaintiff of Title Suit No. 122 of 1967 pending in the Court of the first Subordinate Judge, Patna, against an order dated 30 August 1967, by which the Court has rejected the prayer for the issue of a temporary injunction.
2. The plaintiff was appointed as the depot manager under the Bihar State Co-operative Bank, Ltd., sometime in 1949. Thereafter, according to the plaint, in the year 1958 the business under the Bihar State Co operative Bank was ultimately transferred to the Bihar State Co-operative Marketing Union, Ltd., Patna, and his services were transferred to the said union. The plaintiff was posted at Jahanabad as depot manager and served in the capacity till June 1965. As a result of some enquiry made by an officer of the department, the plaintiff was suspended in terms of the resolution passed by the Board on 12 August 1967, and this suspension order was served on him on 16 August 1967, under the signature of the managing director. The plaintiff prayed for the following reliefs:
(a) That it is declared that the suspension order dated 16 August 1967 is illegal, null and void and contrary to law and rules and inoperative and a decree be passed accordingly.
(b) That the managing director, Bihar State Co-operative Marketing Union, Ltd., Patna, be permanently restrained from giving effect to the suspension order dated 16 August 1967.
The plaint was filed on 29 August 1987, and on 30 August 1967, the plaintiff filed a petition under Order XXXIX, Rules 1 and 2, of the Code of Civil Procedure, praying” therein that defendant 1, that is, the managing director, be restrained from giving effect to the order of suspension dated 16 August 1967, till the dis-posal of the suit.
3. The learned Subordinate Judge, after considering the fact that charges would be served upon the plaintiff and ho would get during the period of suspension his subsistence [allowance in accordance with the rates admissible under the rules of the Marketing Union and also the fact that the plaintiff has already been placed under suspension, passed the order rejecting prayer for the issue of a temporary injunction restraining defendant 1 to enforce the suspension order till the disposal of the suit.
4. Sri S.C. Ghosh, learned Counsel appearing for the plaintiff appellant in this Court, submitted before us that the plaintiff being an employee of the Bihar State Co-operative Bank, Ltd., could not thrown into the lap of the Bihar State Co-oporative Marketing ; Union, Ltd… without his consent. Therefore, the order of suspension passed by the managing director of the Marketing Union was illegal and not enforceable. According to him, the plaintiff had a permanent lien on the Bihar State Co-operative Bank, Ltd., and the managing director of the Bihar State Co-operative Marketing Union, Ltd., has no power to suspend him. But this point is not available to the plaintiff-appellant, because I find that nowhere in the plaint such a case has been made out by the plaintiff and having failed to make at such a case in the plaint, it would not be proper to allow the plaintiff to raise such a point for the first time in appeal. Sri Ghosh submitted that law is not required to be pleaded. But the point is not purely a question of law, as it raises question of facts and it was obligatory on the plaintiff to state these facts in the plaint. The plaintiff has not made the Bihar State Co-operative Bank, Ltd., a party in the suit nor there is any averment in any paragraph of the plaint or in the reliefs sought that the plaintiff still continues to be in the service of the bank and the managing director (defendant 1) had no power to suspend him under the rules framed by the Marketing Union (defendant 2). For the reasons stated above, the decision of this Court, cited by Sri Ghosh in Ayoahya Prasad and Ors. v. Union of India C.W.J.C. No. 1148 of 1965 has no application.
5. Next Sri Ghosh placed before us the bylaws of the Bihar State Co-operative Marketing Union to show that in terms of the bylaws the managing director had no power to suspend the plaintiff. The original bylaws of the union had been amended in the year 1962 and as required by the Bihar and Orissa Co-operative Societies Act, 1935, had been duly certified by the Joint Registrar, Co-operative Societies (Marketing), Bihar, Patna. The managing director of the union has powers in certain circumstances to suspend a class of salaried staff of the union. The board of directors, according to these by laws, have all the powers regarding the management of the affairs of the Marketing Union and the Board is ultimate authority regarding all the matters relating to the affairs of the Marketing Union. According to the plaint, the suspension order has been issued under the authority of the Board as per its resolution dated 12 August 1967. Therefore, in a situation like this it is very difficult to hold that the plaintiff has got a Prime fide case and may persuade the Court to grant temporary injunction till the disposal of the suit. So far as the balance of convenience is concerned, it is enough to refer to the several regulations framed by the Marketing Union concerning the terms and conditions of the services of its staff. The relevant regulation regarding suspension is in these words:
Where allegations of serious misconduct or act of indiscipline are made against an employee and the appointing authority considers that he should be ‘ suspended’ Immediately, pending enquiry, he may do so by an order in writing to this effect, Such an order shall take effect Immediately. The order of suspension shall be followed by the chargecheet in writing within a fortnight unless there are special reasons for the delay. The chargesheet shall precisely state the details of the alleged misconduct or act of indiscipline. The procedure already laid down in Sub-clauses I to VI of S. ‘H’ (1) shall then be followed. Refusal to take suspension order or chargesheet will amount to proper service of suspension order/charge-sheet.
During the period of suspension pending enquiry, the employee shall be paid subsistence allowance at the rate of 30 per cent of the basic pay drawn by him on the date of suspension.
The argument on behalf of the appellant was that this reduction in the salary, that is, allowing 50 per cent as subsistence allowance, itself is a ground for granting temporary injunction because it will cause hardship to the plaintiff. But here also I find that no such case has been made out by the plaintiff either in the petition filed by him under Order XXXIX, Rules 1 and 2, or at the time of, the hearing of the petition by the learned Subordinate Judge. Sri Ghosh cited
before us three cases of the Supreme Court, namely, Hotel Imptrial, New Delhi Ors. v. Hotel Workers’ Union 1959-II L.L J. 544; T. Cajee v. U. Jormonik Siem and Anr. 1961-I L.L.J. 652; and R.P. Kapur v. Union of India and Anr. 1966-II L.L.J. 164 in support of his contention that during the period of suspension the managing director of the Marketing Union has no power to reduce the emoluments of the employee. But these cases lay down that where there is power to suspend either in the contract of employment or the service rules the order of suspension has the effect of temporarily suspending the relationship of master and servant. The general principle therefore, is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. It is also well-settled that if there is a term in this respect in the contract of employment or the service rules providing for the scale of payment during suspension the payment will be made in accordance therewith. In the instant case, as stated above, the subsistence allowance of 50 per cent is according to the regulations quoted above.
6. Sri Thakur Prasad, learned Counsel appearing for the defendant-respondents, rightly submitted before us that in a case like this a temporary injunction cannot be granted because it will be contrary to the specific provisions contained in the Specific Relief Act He submitted before us that It would not be necessary to go into the question whether the plaintiff has got balance of convenience in his favour or not because the suit itself was not maintainable. Sri Thakur Prasad placed before us the various provisions of the bylaws and the regulations of the Marketing Union in order to show that the plaintiff had no prina facie case and the balance of convenience was in favour of the Marketing Union. But if it is decided that no injunction, either permanent or temporary, can be issued by the Court in a suit for the enforcement of the personal contract of service, then the consideration of all these matters becomes irrelevant.
7. Sri Thakur Prasad relied on the following cases, namely, Muhammad Mustafa Ali Khan v. District Board, Bareilly, and Anr. I.L.R. 56 All. 573 ; Ramchandra Bajpye v. Ralchal Das Mukhtrjee A.I.R. 1914 Cal. 325; Mothey Krishna Rao v. Grandhi Afrjaneyulu and Ors. ; Dr. S. Dutt v. University of Delhi
; and Syed Wasiuddin Ahmad and Ors. v. Harindra Bahadur Sinha and Ors. 1965 B.L.J.R.792. The case, Muhanmad Mustafa Ali Khan I.L.R. 56 All. 573 (vide supra), is a decision by a single Judge of the Allahabad High Court, but his lordship has laid down the principle very lucidly, Before I go to the other cases, I would refer to the decision in Syed Wasiuddin Ahmad case 1965 B.L. J.R. 792 (vide supra). In this case Anant Singh, J., has laid down the law very correctly in these words:
It is further pointed out that an unwanted servant cannot thrust himself on his master, and on a wrongful dismissal, the servant’s remedy lies in an action for damages. A public servant can in certain cases even sue for reinstatement, but an order of injunction in a matter of public administration cannot be ordinarily granted, The Courts should be circumspect in granting Injunctions against any public institution, the effect of which will be to paralyze its administration.
This view is also supported by the other decisions cited by Sri Thakur Prasad on behalf of the defendant-respondents. The Supreme Court in the above-referred case has observed as follows:
We are in entire agreement with the view expressed by the High Court. There is no doubt that a contract of personal service cannot be specifically enforced.
Section 21, Clause (b) of the Specific Relief Act, 1877, and the second illustration
under this clause given in the section ekes it so clear that farther elaboration f the point is not required.
8. Sri S.C. Ghosh on this point only cited a decision of Sinha, J., in the case of Harihar Prasad v. Raj Kishore Lal. , but in this case the attention of his lordship was not drawn to the provisions of the Specific Relief Act and the cases cited before, us on behalf of the respondents.
9. Temporary injunctions to restrain the breach of a contract are regulated by Order XXXIX, Rule 2, of the Code of Civil Procedure. Perpetual injunctions to restrain the breach of a contract are regulated by the Specific Relief Act. Section 56(f)(old) and Section 41(e)(new) of the Act provide that a perpetual injunction cannot be granted to prevent the breach oft contract the performance of which would not1 be specifically enforced. Section 21(b)(old) and Section 14(6)(new) provide inter alia that Court cannot enforce a contract of service where the contract is so dependant upon the personal qualifications or volition of the parties. Further, as held by the Supreme Court, cited above, when a contract of personal service cannot be specifically enforced, in my opinion, no temporary injunction can also be granted to restrain the employer to enforce the order of suspension.
10. For the reasons stated above, I find no/merit in this appeal and the appeal missed with costs.
11. As the appeal has been dismissed, the ad intrim stay granted on 8 September 1967 stands vacated.
S.N.P. Singh, J.
12. I agree.
